Proceeds of Crime Bill

[back to previous text]

The Chairman: It would help if hon. Members would pay attention. I know that we are nearing the end of the sitting, but I remind them that we have 30 clauses to consider by 7 o'clock.

The chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill.

Question agreed to.

Clause 255, as amended, ordered to stand part of the Bill.

Clause 256

Restriction on proceedings and remedies

Mr. Grieve: I beg to move amendment No. 357, in page 149, line 32, after 'receiver', insert

    'and any other affected party'.

The clause imposes

    ''Restriction on proceedings and remedies''.

Subsection (1) states:

    ''While an interim receiving order has effect—

    (a) the court may stay any action, execution or other legal process in respect of the property to which the order applies,

    (b) no distress may be levied against the property''.

Subsection (2) provides:

    ''If a court (whether the High Court or any other court) in which proceedings are pending in respect of any property is satisfied that an interim receiving order has been applied for or made...the court may either stay the proceedings or allow them to continue on any terms it thinks fit.''

Subsection (3) states:

    ''Before exercising any power conferred by subsection (2), the court must give the enforcement authority and (if appointed) the interim receiver an opportunity to be heard.''

I am in favour of giving the enforcement authority and the interim receiver the opportunity to be heard, but what about the other side? The amendment would allow ''any other affected party''—the Minister will note the consistency of my approach; I use the word ''affected'' rather than ''interested'' party—to make representations to the court. Is it intended that, under the Bill, only the interim receiver or the enforcement authority may make representations? I find that strange. In circumstances in which there are bound to be other affected parties, they, too, should be entitled to make representations.

The amendment is minor and I do not believe that it would prejudice the outcome of the proceedings. The amendment does, at least, ensure fairness. If I have misunderstood the position and other affected parties are also able to make representations under a provision that is not spelt out in the clause, I should be happy to be reassured to that effect. Unless the Minister can reassure me about that, it seems to me that my amendment would be a valuable safeguard that would ensure that the court obeys the usual rules of hearing the other side.

Column Number: 758

Mr. Bob Ainsworth: Let us see the degree to which I can satisfy the hon. Gentleman. Subsection (2) provides that any court in which other proceedings are pending in respect of property subject to an interim receiving order may stay proceedings or impose its own terms on how those proceedings should continue. Before exercising that power, the court must give the enforcement authority and the interim receiver the right to be heard. As the hon. Gentleman said, the amendment would give any other party affected by the proceedings the right to be heard. The clause is intended to cover the situation where a civil recovery procedure and other proceedings are ongoing in respect of the same property. In such circumstances, the parties to the other proceedings will have had an automatic right to be heard, before the court exercises any power conferred under subsection (2) to stay the proceedings or to allow them to continue. We envisaged that those parties would include the respondent to civil recovery proceedings, as the respondent will be holding the property concerned. Those parties might also include holders of associated property, who may, for example, hold an interest in the property, subject to the proceedings.

In addition, clause 256(3) will give the enforcement authority and the interim receiver the right to be heard before the court takes its decision. The amendment would require the court to give any other party affected by either set of proceedings a right to be heard. It appears that the main people affected by either set of proceedings already have the right to be heard by the court, before it exercises any powers under clause 265(2). We are not sure, therefore, that the amendment is needed. However, the hon. Gentleman has raised a point that we will consider further, to see whether there are any affected parties who should have the opportunity to be heard by the court but who currently have no right to be heard. If, as a result of that process, we identify any gap, we will table an amendment on Report to cover it. With that assurance, I invite the hon. Gentleman to consider withdrawing his amendment.

Mr. Grieve: Yes, I will. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 256 ordered to stand part of the Bill.

Clause 257

Exclusion of property which is not recoverable etc.

Mr. Grieve: I beg to move amendment No. 384, in page 150, line 3, leave out from 'that' to the end of line 5 and insert

    'it is just so to do'.

The clause deals with the exclusion of property that is not recoverable. Subsection (3) states:

    ''The court may exclude any property within subsection (2) on any terms or conditions, applying while the interim receiving order has effect, which the court thinks necessary or expedient.''

The amendment would replace that with

    'it is just so to do'.

Column Number: 759

On a previous occasion, members of the Committee debated the use of expressions and, in particular, the word ''appropriate''. The Minister and I were poles apart. I said that I did not like the use of the word ''appropriate'' and that I preferred the word ''just''. The reason for that was that the word ''appropriate'' covered administrative convenience. Under subsection (3), the wording is even more heavily weighted towards administrative convenience. What do the words ''necessary or expedient'' mean? How do they square with the principles of justice? If the words ''necessary or expedient'' mean the same as ''just so to do'', let us have ''just so to do'' because that is a better form of words. If they do not, there is a distinct difference in meaning between ''just so to do'' and ''necessary or expedient''.

I worry about the word ''expedient'', because that which is expedient is not necessarily fair or just. Subsection (3) refers to whether property that is not recoverable should be excluded. Subsection (1) states:

    ''If the court decides that any property to which''—

The Chairman: Order. I have been listening carefully to the hon. Gentleman. Far be it from me to quarrel with his legal expertise, but it appears that he is speaking to subsection (3), whereas his amendment appears to apply to subsection (2). I am perfectly happy for the hon. Gentleman to broaden the debate slightly, on the understanding that there will not be a stand part debate. However, in the interests of marshalling his argument, he may wish to review his position.

Mr. Grieve: I am very grateful, Mr. Gale, and I apologise profusely to the Committee. I am having to consider whether the error is in my reading, or in my amendment, which I drafted late at night as usual, or whether I intended it to refer to subsection (3). I am sure that I have made an error in identifying the line in which the amendment was supposed to feature, but I am bound to say that I intended to amend subsection (3) for the reasons that I have given—to change ''necessary or expedient'' to ''just so to do''. I am reinforced in that view by the fact that my manuscript note is against the passage concerned. I apologise to the Committee and the Minister, who will have notes prepared with reference to something entirely different. Indeed, I was just trying to look at subsection (2) to see whether it would make sense to make the amendment—

The Chairman: Order. With respect, the hon. Gentleman cannot move an amendment that is not on the amendment paper. It might be for his convenience to consider not moving it, and engage in the debate that he wants on clause stand part, which would give the Minister the opportunity to reply. Although that would not create an amendment, it would allow the Minister to give any assurances that he wants to give.

Mr. Grieve: I can only apologise further. It is clear that I am in a muddled condition. I beg to ask leave to withdraw the amendment.

Column Number: 760

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Bob Ainsworth: The clause contains provisions that are intended to ensure that property does not remain subject to an interim receiving order unnecessarily. Clause 254, which we have already discussed, provides that the court has the power to vary or set aside an interim receiving order at any time. Clause 257 makes further specific provision for the court to vary an order so that certain properties are excluded from the proceedings altogether. It covers two situations: those in which the court decides before the final trial of the action that the property to which the order applies is neither recoverable property nor associated property, and those in which the court thinks that alleged associated property could be excluded from the terms of the interim receiving order without prejudicing the director's right to recover property. The clause therefore provides useful safeguards.

Clearly, property that is neither recoverable nor associated property should not remain the subject of an interim receiving order once it has been established that that is the case. The court may decide that following an application by an interested person, or in response to a report from the interim receiver made under clause 258. If it so decides, it will be required to exclude the relevant property from the terms of the interim receiving order, which could apply to all of the property subject to the order or just some of it. Property that is alleged to be associated property may be in the hands of persons who are willing to co-operate with the proceedings, and who have no interest in frustrating the future making of a recovery order. When that is the case, there may be no need to apply an interim receiving order to such property. The court may therefore exclude from the terms of the interim receiving order alleged associated property, if it thinks that the property may be excluded without prejudice to possible further rights of the director to recover recoverable property. If the court decides to vary the order so as to exclude associated property, it may apply terms and conditions that it believes necessary or expedient, which may remain in force while the order has effect. The clause ensures that interim receiving orders will be reviewed as necessary and that property found not to be recoverable or associated is removed from the ambit of an order. It will allow the removal of alleged associated property from the terms of the order without prejudicing the director's right of recovery.

5 pm

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 18 December 2001